The legal wife, the de facto wife and the deceased estate – which case won?
Marriage to legal wife produces four children
In 1938, a 24-year-old NSW man got married. His wife was 16 years old at the time. Soon after the wedding, the man was jailed for six months.
The couple had four children between 1938 and 1946. They did not have an easy life, moving around from place to place within NSW and sleeping in caravans, sheds and other rudimentary forms of accommodation.
The husband worked as a travelling drover, handyman and farm hand. He was chronically neglectful of his responsibilities to provide financially for his family, often leaving them to pursue his love of horses.
The wife often did not know where he was and was forced to work outside the home to support her family as a sole parent. She testified in subsequent court proceedings that the children often went without shoes during these years and that she was forced to move in with her mother because of a lack of money.
De facto wife supplants legal wife
In 1949 the man left his wife and children altogether for another woman, who became his de facto wife. They went droving together in outback NSW, enduring difficult living conditions, but eventually managing to buy property together.
When the man died, he and his de facto wife were living together on a 160-acre grazing property which they had jointly purchased in 1971.
The man and his de facto wife had five children who were born between 1954 and 1970. The couple remained together until the man died in 1998 at the age of 83. However, he never divorced his legal wife.
Relationship maintained with both wives
The legal wife led a life of extreme hardship after her husband left her for the de facto wife. She did not marry again and she did not form another relationship.
On various occasions the legal wife tried to persuade her husband to return to her, but without success. At no time did she try to divorce him and she refused his requests to consent to a divorce.
During the legal proceedings over the man’s estate after his death, the court remarked that he had led a double life, keeping his dealings with each of the women partially concealed from the other.
He continued to have contact with the legal wife long after they had separated, expressing remorse for the way he had treated his first family and admitting that he had done the wrong thing by his legal wife and their four children.
Entire estate left to de facto wife
The deceased’s will assigned all of his property, worth $230,812, to the de facto wife. The legal wife took legal action under the Family Provision Act, arguing that her husband had made only minimal and inadequate provision for her during his lifetime.
The District Court agreed, determining that the legal wife had greater entitlement to the man’s estate than the de facto wife and allocating $125,000 of the estate to the legal wife.
The de facto wife appealed this decision in the Court of Appeal of the Supreme Court of NSW, pointing out that the property where she lived would have to be sold to provide a legacy for the legal wife and arguing that the District Court had erred on several grounds.
It was up to the Court of Appeal to determine whether the first court decision had fairly and correctly divided an estate which was too small to provide adequately for two elderly wives who both had real and legitimate needs.